legislative update
Jon Huffmaster, Legislative Director
Water rule infringes on private property rights Congress passed the Clean Water Act (CWA) in 1972, giving the federal government the authority to regulate navigable waters of the United States. Since passage of the CWA, the U.S. Supreme Court has decided numerous cases in an attempt to determine what is meant by navigable “waters of the United States” (WOTUS). In April 2014 the Environmental Protection Agency (EPA) and the Army Corps of Engineers proposed a rule titled “Definition of ‘Waters of the United States’ Under the Clean Water Act.” The agencies contend the purpose is to clarify what is considered a WOTUS, subject to federal regulation. Farm Bureau contends the rule greatly expands federal regulatory authority and infringes on private property rights. Farm Bureau urged the agencies to withdraw the rule and led a campaign for landowners to submit comments during the public comment period. The comment period ended last November, and during that time GFB members submitted 15,558 comments urging withdrawal of the rule. Instead of withdrawing the rule or making substantive changes to it, the agencies are moving toward final approval. The prepublication version of the rule was released on May 27 and it will become law 60 days after it is published in the Federal Register. The rule expands federal jurisdiction by application of new definitions, such as tributaries. According to the new rule, “For purposes of the Clean Water Act…the term ‘waters of the United States’ means…(5) All tributaries, as defined in paragraph (c)(3)…” Therefore, the way this rule defines “tributaries” is very important to landowners. According to paragraph (c)(3), “The terms tributary and tributaries each mean a water that contributes flow, either directly or through another water…to a water… of this section that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark.” In the new rule’s preamble, there is an Georgia Farm Bureau News
additional explanation of tributaries. “Under the rule, flow in the tributary may be perennial, intermittent, or ephemeral…Ephemeral streams have flowing water only in response to precipitation events in a typical year.” This definition of tributaries means anything with physical indicators of a bed, bank, and high water mark will be considered a tributary of a navigable water of the United States subject to federal regulation. Even if no water is present, the land will be considered a tributary if the physical indicators are there.
The new rule also includes a very broad definition of “significant nexus,” a test used to determine whether an area is a WOTUS. Significant nexus is defined to include waters that trap sediment, recycle nutrients, trap and filter pollutants, retain floodwaters, store runoff, contribute flow, export organic matter, export food resources, or provide habitat for life cycle dependent aquatic species. From a practical standpoint, nearly all water will perform at least one of those functions. EPA’s response to concerned landowners was a public relations campaign to encourage citizens to support the rule. The agency has also provided misleading information about it. For example, the EPA website states there are exemptions for farm ponds. However, the only ponds exempted
from the rule are those without an inlet or outlet. Exempted ponds are those “created by excavating and/or diking dry land.” This rule is not legislation; it is a rule proposed by a federal agency, and as such, it will not be voted on by Congress. Farm Bureau, however, is calling on Congress to block the agencies from implementing the rule. On May 12 the U.S. House of Representatives passed H.R. 1732 by a vote of 261-155. Georgia Farm Bureau supports the legislation because it blocks implementation of the rule and sends it back to the agencies for more stakeholder involvement and participation. Congressmen Rob Woodall and Rick Allen cosponsored the bill. All members of the Georgia delegation voted in favor of passage except for Congressmen Hank Johnson and John Lewis. In the U.S. Senate, S. 1140 would require the agencies to withdraw the rule and adhere to limiting principles to ensure any new proposal would conform to jurisdictional limits set by Congress and affirmed by the Supreme Court. Farm Bureau supports this legislation, and both Sens. Johnny Isakson and David Perdue are cosponsors. The Senate Environment & Public Works Committee passed the bill, but it had not come up for a floor vote when we went to press. Farm Bureau is also working through the appropriations process to block funding to the agencies as they move to implement the rule. The organization is also analyzing ways to fight the measure in court when the agencies begin to enforce it. Farm Bureau members can help by constantly reminding members of Congress about their concerns regarding the erosion of private property rights. Elected officials need to know that landowners will not continue to put up with the steady erosion of private property rights by federal agencies with no accountability to voters. Jon Huffmaster is director of the GFB Legislative Dept. and GFB Asst. Corporate Secretary. June-July 2015 / 5